(Slip Opinion) OCTOBER TERM, 2009 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

HEMI GROUP, LLC, ET AL. v. CITY OF NEW YORK, 

NEW YORK

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SECOND CIRCUIT 

No. 08–969. Argued November 3, 2009—Decided January 25, 2010 

Respondent New York City taxes the possession of cigarettes. Petitioner Hemi Group, based in New Mexico, sells cigarettes online to

residents of the City. Neither state nor city law requires out-of-state

sellers such as Hemi to charge, collect, or remit the City’s tax; instead, the City must recover its tax on out-of-state sales directly from 

the purchasers. But the Jenkins Act, 15 U. S. C. §§375–378, requires

out-of-state sellers to submit customer information to the States into 

which they ship cigarettes, and New York State has agreed to forward that information to the City. That information helps the City

track down cigarette purchasers who do not pay their taxes. Against

that backdrop, the City filed this lawsuit under the Racketeer Influenced and Corrupt Organizations Act (RICO), alleging that Hemi’s

failure to file the Jenkins Act reports with the State constituted mail

and wire fraud, which are defined as “racketeering activit[ies],” 18

U. S. C. §1961(1), subject to enforcement under civil RICO, §1964(c).

The District Court dismissed the claims, but the Second Circuit vacated the judgment and remanded. Among other things, the Court of 

Appeals held that the City’s asserted injury—lost tax revenue—came

about “by reason of” the predicate mail and wire frauds. It accordingly determined that the City had stated a valid RICO claim. 

Held: The judgment is reversed, and the case is remanded. 

541 F. 3d 425, reversed and remanded. 

CHIEF JUSTICE ROBERTS delivered the opinion of the Court in part,

concluding that because the City cannot show that it lost tax revenue 

“by reason of” the alleged RICO violation, it cannot state a RICO

claim. Pp. 5–15. 
2 HEMI GROUP, LLC v. CITY OF NEW YORK 

Syllabus 

(a) To establish that an injury came about “by reason of” a RICO 

violation, a plaintiff must show that a predicate offense “not only was 

a ‘but for’ cause of his injury, but was the proximate cause as well.” 

Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 

268. Proximate cause for RICO purposes should be evaluated in light 

of its common-law foundations; it thus requires “some direct relation

between the injury asserted and the injurious conduct alleged.” Ibid. 

A link that is “too remote,” “purely contingent,” or “indirec[t]” is insufficient. Id., at 271, 274. 

The City’s causal theory cannot satisfy RICO’s direct relationship 

requirement. Indeed, the causal link here is far more attenuated 

than the one the Court rejected as “purely contingent” and “too remote” in Holmes. Id., at 271. According to the City, Hemi committed

fraud by selling cigarettes to city residents and failing to submit the

required customer information to the State. Without the reports

from Hemi, the State could not pass on the information to the City, 

even if it had been so inclined. Some of the customers legally obligated to pay the cigarette tax to the City failed to do so. Because the 

City did not receive the customer information, it could not determine

which customers had failed to pay the tax. The City thus could not 

pursue those customers for payment. The City thereby was injured

in the amount of the portion of back taxes that were never collected. 

As the Court reiterated in Holmes, “[t]he general tendency of the law, 

in regard to damages at least, is not to go beyond the first step,” id., 

at 271–272, and that “general tendency” applies with full force to 

proximate cause inquiries under RICO, e.g., ibid. Because the City’s

causation theory requires the Court to move well beyond the first 

step, that theory cannot satisfy RICO’s direct relationship requirement. 

The City’s claim suffers from the same defect as the RICO claim rejected in Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 458–461, 

where the conduct directly causing the harm was distinct from the 

conduct giving rise to the fraud, see id., at 458. Indeed, the disconnect between the asserted injury and the alleged fraud in this case is

even sharper. In Anza, the same party had both engaged in the

harmful conduct and committed the fraudulent act. Here, the City’s 

theory of liability rests not just on separate actions, but separate actions carried out by separate parties. The City’s theory thus requires

that the Court extend RICO liability to situations where the defendant’s fraud on the third party (the State) has made it easier for a 

fourth party (the taxpayer) to cause harm to the plaintiff (the City). 

Indeed, the fourth-party taxpayers here only caused harm to the City

in the first place if they decided not to pay taxes they were legally obligated to pay. Put simply, Hemi’s obligation was to file Jenkins Act 
Cite as: 559 U. S. ____ (2010) 3 

Syllabus 

reports with the State, not the City, and the City’s harm was directly

caused by the customers, not Hemi. The Court has never before 

stretched the causal chain of a RICO violation so far, and declines to 

do so today. See, e.g., id., at 460–461. Pp. 5–9. 

(b) The City attempts to avoid this conclusion by characterizing the 

violation not merely as Hemi’s failure to file Jenkins Act reports with 

the State, but as a more general systematic scheme to defraud the 

City of tax revenue. But if the City could escape the proximate-cause

requirement merely by alleging that the fraudulent scheme embraced

all those indirectly harmed by the alleged conduct, the Court’s RICO

proximate cause precedent would become a mere pleading rule. That 

precedent makes clear that “the compensable injury flowing from a 

[RICO] violation . . . ‘necessarily is the harm caused by [the] predicate acts.’ ” Anza, supra, at 457. Because the only fraudulent conduct alleged here is a violation of the Jenkins Act, the City must, but

cannot, show that Hemi’s failure to file the Jenkins Act reports led

directly to its injuries.

The City also errs in relying on Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. ___. There, the plaintiffs’ causation theory was 

“straightforward”: The causal link in Bridge involved a direct and 

easily identifiable connection between the fraud at issue and the

plaintiffs’ injury, id., at ___; the plaintiffs there “were the only parties 

injured by petitioners’ misrepresentations,” id., at ___; and there 

were “no independent factors that account[ed] for [the] injury,” id., at 

___. The City’s theory in this case is anything but straightforward: Multiple steps separate the alleged fraud from the asserted injury. And in contrast to Bridge, where there were “no independent 

factors that account[ed] for [the plaintiffs’] injury,” id., at ___, here 

there certainly were: The City’s theory of liability rests on the independent actions of third and even fourth parties. Pp. 10–14. 

ROBERTS, C. J., delivered the opinion of the Court in part, in which 

SCALIA, THOMAS, and ALITO, JJ., joined, and in which GINSBURG, J., 

joined in part. GINSBURG, J., filed an opinion concurring in part and

concurring in the judgment. BREYER, J., filed a dissenting opinion, in 

which STEVENS and KENNEDY, JJ., joined. SOTOMAYOR, J., took no part 

in the consideration or decision of the case. 
_________________ 

_________________ 

Cite as: 559 U. S. ____ (2010) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 08–969 

HEMI GROUP, LLC AND KAI GACHUPIN, 

PETITIONERS v. CITY OF NEW YORK, 

NEW YORK

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[January 25, 2010] 

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court in part. 

The City of New York taxes the possession of cigarettes.

Hemi Group, based in New Mexico, sells cigarettes online 

to residents of the City. Neither state nor city law requires Hemi to charge, collect, or remit the tax, and the

purchasers seldom pay it on their own. Federal law, 

however, requires out-of-state vendors such as Hemi to

submit customer information to the States into which they 

ship the cigarettes.

Against that backdrop, the City filed this lawsuit under

the Racketeer Influenced and Corrupt Organizations Act 

(RICO), alleging that Hemi failed to file the required 

customer information with the State. That failure, the 

City argues, constitutes mail and wire fraud, which caused 

it to lose tens of millions of dollars in unrecovered cigarette taxes. Because the City cannot show that it lost the

tax revenue “by reason of” the alleged RICO violation, 18 

U. S. C. §1964(c), we hold that the City cannot state a 

claim under RICO. We therefore reverse the Court of 
2 HEMI GROUP, LLC v. CITY OF NEW YORK 

Opinion of the Court 

Appeals’ decision to the contrary. 

I 

A 

This case arises from a motion to dismiss, and so we 

accept as true the factual allegations in the City’s second

amended complaint. See Leatherman v. Tarrant County 

Narcotics Intelligence and Coordination Unit, 507 U. S. 

163, 164 (1993).

New York State authorizes the City of New York to

impose its own taxes on cigarettes. N. Y. Unconsol. Law 

Ann. §9436(1) (West Supp. 2009). Under that authority, 

the City has levied a $1.50 per pack tax on each standard

pack of cigarettes possessed within the City for sale or use. 

N. Y. C. Admin. Code §11–1302(a) (2008); see also Record 

A1016. When purchasers buy cigarettes from in-state

vendors, the seller is responsible for charging, collecting,

and remitting the tax. N. Y. Tax Law Ann. §471(2) (West 

Supp. 2009). Out-of-state vendors, however, are not. 

Ibid.; see City of New York v. Smokes-Spirits.com, Inc., 

541 F. 3d 425, 432–433 (CA2 2008). Instead, the City is

responsible for recovering, directly from the customers, 

use taxes on cigarettes sold outside New York. That can 

be difficult, as those customers are often reluctant to pay 

and tough to track down. One way the City can gather

information that would assist it in collecting the back 

taxes is through the Jenkins Act, 63 Stat. 884, as amended 

by 69 Stat. 627. That Act requires out-of-state cigarette 

sellers to register and to file a report with state tobacco

tax administrators listing the name, address, and quantity 

of cigarettes purchased by state residents. 15 U. S. C. 

§§375–378.

New York State and the City have executed an agreement under which both parties undertake to “cooperate 

fully with each other and keep each other fully and 

promptly informed with reference to any person or trans­
Cite as: 559 U. S. ____ (2010) 3 

Opinion of the Court 

action subject to both State and City cigarette taxes including [i]nformation obtained which may result in additional cigarette tax revenue to the State or City provided

that the disclosure of that information is permissible 

under existing laws and agreements.” Record A1003. The 

City asserts that under that agreement, the State forwards Jenkins Act information to the City. Id., at A998; 

Second Amended Compl. ¶54. That information helps the 

City track down purchasers who do not pay their taxes. 

Id., ¶¶58–59. 

Hemi Group is a New Mexico company that sells cigarettes online. Hemi, however, does not file Jenkins Act 

information with the State. The City alleges that this

failure has cost it “tens if not hundreds of millions of 

dollars a year in cigarette excise tax revenue.” Record 

A996. Based on Hemi’s failure to file the information with 

the State, the City filed this federal RICO claim. 

B 

RICO provides a private cause of action for “[a]ny person injured in his business or property by reason of a

violation of section 1962 of this chapter.” 18 U. S. C. 

§1964(c). Section 1962, in turn, contains RICO’s criminal 

provisions. Specifically, §1962(c), which the City invokes

here, makes it “unlawful for any person employed by or

associated with any enterprise engaged in, or the activities 

of which affect, interstate . . . commerce, to conduct or 

participate, directly or indirectly, in the conduct of such

enterprise’s affairs through a pattern of racketeering 

activity.” “[R]acketeering activity” is defined to include a

number of so-called predicate acts, including the two at 

issue in this case—mail and wire fraud. See §1961(1).

The City alleges that Hemi’s “interstate sale of cigarettes and the failure to file Jenkins Act reports identifying those sales” constitute the RICO predicate offenses of 

mail and wire fraud in violation of §1962(c), for which 
4 HEMI GROUP, LLC v. CITY OF NEW YORK 

Opinion of the Court 

§1964(c) provides a private cause of action. Record A980. 

Invoking that private cause of action, the City asserts that

it has suffered injury in the form of lost tax revenue—its

“business or property” in RICO terms—“by reason of” 

Hemi’s fraud. 

Hemi does not contest the City’s characterization of the 

Jenkins Act violations as predicate offenses actionable 

under §1964(c). (We therefore assume, without deciding,

that failure to file Jenkins Act material can serve as a 

RICO predicate offense.) Instead, Hemi argues that the

City’s asserted injury—lost tax revenue—is not “business

or property” under RICO, and that the City cannot show 

that it suffered any injury “by reason of” the failure to file 

Jenkins Act reports. 

The District Court dismissed the City’s RICO claims,

determining that Hemi owner and officer Kai Gachupin 

did not have an individual duty to file Jenkins Act reports, 

and thus could not have committed the alleged predicate 

acts. City of New York v. Nexicon, Inc., No. 03 CV 383 

(DAB), 2006 WL 647716, *7–*8 (SDNY, Mar. 15, 2006). 

The District Court therefore held that the City could not

establish that Hemi and Gachupin formed an “enterprise” 

as required to establish RICO liability. Id., at *7–*10. 

Because it dismissed on that ground, the District Court 

did not address whether the City’s loss of tax revenue 

constitutes an injury to its “business or property” under

§1964, or whether that injury was caused “by reason of” 

Hemi’s failure to file the Jenkins Act reports.

The Second Circuit vacated the District Court’s judgment and remanded for further proceedings. The Court of 

Appeals held that the City had established that Gachupin 

and Hemi operated as an “enterprise” and that the enterprise committed the predicate RICO acts of mail and wire

fraud, based on the failure to file the Jenkins Act material 

with the State. 541 F. 3d, at 447–448. The court also 

determined that the City’s asserted injury, lost tax reve­
Cite as: 559 U. S. ____ (2010) 5 

Opinion of the Court 

nue, was “business or property” under RICO. Id., at 444– 

445. And that injury, the court concluded, came about “by 

reason of” the predicate mail and wire frauds. Id., at 440– 

444. The City thus had stated a viable RICO claim.

Judge Winter dissented on the ground that the alleged

RICO violation was not the proximate cause of the City’s 

injury. Id., at 458–461. 

Hemi filed a petition for certiorari, asking this Court to 

determine whether the City had been “directly injured in

its ‘business or property’” by reason of the alleged mail 

and wire frauds. Pet. for Cert. i. We granted that petition. 556 U. S. __ (2009). 

II 

Though framed as a single question, Hemi’s petition for 

certiorari raises two distinct issues: First, whether a loss 

in tax revenue is “business or property” under 18 U. S. C. 

§1964(c); and second, whether the City’s asserted injury

came about “by reason of” the allegedly fraudulent conduct, as required by §1964(c). We determine that the City 

cannot satisfy the causation requirement—that any injury

the City suffered must be “by reason of” the alleged 

frauds—and therefore do not decide whether the City’s 

allegations of lost tax revenue constitute an injury to its

“business or property.” 

A 

In Holmes v. Securities Investor Protection Corporation, 

503 U. S. 258 (1992), we set forth the standard of causation that applies to civil RICO claims. In that case, we 

addressed a RICO claim brought by Securities Investor 

Protection Corporation (SIPC) against defendants whom

SIPC alleged had manipulated stock prices. Id., at 262– 

263. SIPC had a duty to reimburse customers of certain

registered broker-dealers in the event the broker-dealers 

were unable to meet their financial obligations. Id., at 
6 HEMI GROUP, LLC v. CITY OF NEW YORK 

Opinion of the Court 

261. When the conspiracy by the stock manipulators was 

detected, stock prices collapsed, and two broker-dealers 

were unable to meet their obligations to their customers.

SIPC, as insurer against that loss, ultimately was on the

hook for nearly $13 million to cover the customers’ claims. 

The Court held that SIPC could not recover against the 

conspirators because it could not establish that it was 

injured “by reason of” the alleged fraud, as that phrase is

used in RICO. 

We explained that, to state a claim under civil RICO,

the plaintiff is required to show that a RICO predicate

offense “not only was a ‘but for’ cause of his injury, but 

was the proximate cause as well.” Id., at 268. Proximate 

cause for RICO purposes, we made clear, should be evaluated in light of its common-law foundations; proximate 

cause thus requires “some direct relation between the 

injury asserted and the injurious conduct alleged.” Ibid. 

A link that is “too remote,” “purely contingent,” or “indirec[t]” is insufficient. Id., at 271, 274. 

Applying that standard, we rejected SIPC’s RICO claim.

The alleged conspiracy, we held, directly harmed only the 

broker-dealers; SIPC’s injury, on the other hand, was 

“purely contingent” on that harm. Id., at 271. The connection between the alleged conspiracy and SIPC’s injury

was therefore “too remote” to satisfy RICO’s direct relationship requirement. Ibid. 

The City’s causal theory is far more attenuated than the

one we rejected in Holmes. According to the City, Hemi 

committed fraud by selling cigarettes to city residents and

failing to submit the required customer information to the

State. Without the reports from Hemi, the State could not

pass on the information to the City, even if it had been so

inclined. Some of the customers legally obligated to pay

the cigarette tax to the City failed to do so. Because the 

City did not receive the customer information, the City

could not determine which customers had failed to pay the 
Cite as: 559 U. S. ____ (2010) 7 

Opinion of the Court 

tax. The City thus could not pursue those customers for 

payment. The City thereby was injured in the amount of 

the portion of back taxes that were never collected. See 

Record A996. 

But as we reiterated in Holmes, “[t]he general tendency

of the law, in regard to damages at least, is not to go beyond the first step.” 503 U. S., at 271–272 (quoting Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 

U. S. 519, 534 (1983), in turn quoting Southern Pacific Co. 

v. Darnell-Taenzer Lumber Co., 245 U. S. 531, 533 (1918), 

internal quotation marks omitted). Our cases confirm 

that the “general tendency” applies with full force to 

proximate cause inquiries under RICO. Holmes, supra, at 

271–272; see also Bridge v. Phoenix Bond & Indemnity 

Co., 553 U. S. __, __ (2008) (slip op., at 18–19); Anza v. 

Ideal Steel Supply Corp., 547 U. S. 451, 460–461 (2006).

Because the City’s theory of causation requires us to move

well beyond the first step, that theory cannot meet RICO’s 

direct relationship requirement.

 Our decision in Anza, supra, confirms that the City’s

theory of causation is far too indirect. There we considered a RICO claim brought by Ideal Steel Supply against

its competitor, National Steel Supply. Ideal alleged that 

National had defrauded New York State by failing to

charge and remit sales taxes, and that National was thus

able to undercut Ideal’s prices. The lower prices offered by

National, Ideal contended, allowed National to attract 

customers at Ideal’s expense. Id., at 458. 

Finding the link between the fraud alleged and injury 

suffered to be “attenuated,” we rejected Ideal’s claim. Id., 

at 459. “The direct victim of this conduct,” we held, was 

“the State of New York, not Ideal.” Id., at 458. “It was the 

State that was being defrauded and the State that lost tax 

revenue as a result.” Ibid. We recognized that Ideal had 

asserted “its own harms when [National] failed to charge

customers for the applicable sales tax.” Ibid. But the 
8 HEMI GROUP, LLC v. CITY OF NEW YORK 

Opinion of the Court 

cause of Ideal’s harm was “a set of actions (offering lower 

prices) entirely distinct from the alleged RICO violation 

(defrauding the State).” Ibid. The alleged violation therefore had not “led directly to the plaintiff’s injuries,” and 

Ideal accordingly had failed to meet RICO’s “requirement

of a direct causal connection” between the predicate offense and the alleged harm. Id., at 460–461. 

The City’s claim suffers from the same defect as the

claim in Anza. Here, the conduct directly responsible for

the City’s harm was the customers’ failure to pay their 

taxes. And the conduct constituting the alleged fraud was

Hemi’s failure to file Jenkins Act reports. Thus, as in 

Anza, the conduct directly causing the harm was distinct

from the conduct giving rise to the fraud. See id., at 458. 

Indeed, the disconnect between the asserted injury and

the alleged fraud in this case is even sharper than in 

Anza. There, we viewed the point as important because 

the same party—National Steel—had both engaged in the 

harmful conduct and committed the fraudulent act. We 

nevertheless found the distinction between the relevant 

acts sufficient to defeat Ideal’s RICO claim. Here, the 

City’s theory of liability rests not just on separate actions, 

but separate actions carried out by separate parties. 

The City’s theory thus requires that we extend RICO 

liability to situations where the defendant’s fraud on the

third party (the State) has made it easier for a fourth 

party (the taxpayer) to cause harm to the plaintiff (the

City). Indeed, the fourth-party taxpayers here only caused 

harm to the City in the first place if they decided not to 

pay taxes they were legally obligated to pay. Put simply,

Hemi’s obligation was to file the Jenkins Act reports with

the State, not the City, and the City’s harm was directly

caused by the customers, not Hemi. We have never before 

stretched the causal chain of a RICO violation so far, and 

we decline to do so today. See id., at 460–461; cf. Associated Gen. Contractors, supra, at 541, n. 46 (finding no 
Cite as: 559 U. S. ____ (2010) 9 

Opinion of the Court 

proximate cause in the antitrust context where the plaintiff’s “harm stems most directly from the conduct of persons who are not victims of the conspiracy”).

One consideration we have highlighted as relevant to

the RICO “direct relationship” requirement is whether

better situated plaintiffs would have an incentive to sue. 

See Holmes, supra, at 269–270. The State certainly is

better situated than the City to seek recovery from Hemi.

And the State has an incentive to sue—the State imposes 

its own $2.75 per pack tax on cigarettes possessed within

the State, nearly double what the City charges. N. Y. Tax 

Law Ann. §471(1) (West Supp. 2009). We do not opine on

whether the State could bring a RICO action for any lost 

tax revenue. Suffice it to say that the State would have 

concrete incentives to try. See Anza, supra, at 460 (“Ideal

accuses the Anzas of defrauding the State of New York out 

of a substantial amount of money. If the allegations are

true, the State can be expected to pursue appropriate

remedies”).

The dissent would have RICO’s proximate cause requirement turn on foreseeability, rather than on the existence of a sufficiently “direct relationship” between the 

fraud and the harm. It would find that the City has satisfied that requirement because “the harm is foreseeable; it 

is a consequence that Hemi intended, indeed desired; and 

it falls well within the set of risks that Congress sought to 

prevent.” Post, at 6 (opinion of BREYER, J.). If this line of 

reasoning sounds familiar, it should. It is precisely the 

argument lodged against the majority opinion in Anza. 

There, the dissent criticized the majority’s view for “permit[ting] a defendant to evade liability for harms that are 

not only foreseeable, but the intended consequences of 

the defendant’s unlawful behavior.” 547 U. S., at 470 

(THOMAS, J., concurring in part and dissenting in part).

But the dissent there did not carry the day, and no one 

has asked us to revisit Anza. 
10 HEMI GROUP, LLC v. CITY OF NEW YORK 

Opinion of the Court 

The concepts of direct relationship and foreseeability are

of course two of the “many shapes [proximate cause] took 

at common law,” Holmes, supra, at 268. Our precedents

make clear that in the RICO context, the focus is on the 

directness of the relationship between the conduct and the 

harm. Indeed, Anza and Holmes never even mention the 

concept of foreseeability. 

B 

The City offers a number of responses. It first challenges our characterization of the violation at issue. In 

the City’s view, the violation is not merely Hemi’s failure 

to file Jenkins Act information with the State, but a more 

general “systematic scheme to defraud the City of tax

revenue.” Brief for Respondent 42. Having broadly defined the violation, the City contends that it has been

directly harmed by reason of that systematic scheme. 

Ibid. 

But the City cannot escape the proximate cause requirement merely by alleging that the fraudulent scheme 

embraced all those indirectly harmed by the alleged conduct. Otherwise our RICO proximate cause precedent 

would become a mere pleading rule. In Anza, for example,

Ideal alleged that National’s scheme “was to give National

a competitive advantage over Ideal.” 547 U. S., at 454– 

455. But that allegation did not prevent the Court from

concluding that National’s fraud directly harmed only the 

State, not Ideal. As the Court explained, Ideal could not 

“circumvent the proximate-cause requirement simply by 

claiming that the defendant’s aim was to increase market

share at a competitor’s expense.” Id., at 460.1 

—————— 

1Even if we were willing to look to Hemi’s intent, as the dissent suggests we should, the City would fare no better. Hemi’s aim was not to 

defraud the City (or the State, for that matter) of tax revenue, but to

sell more cigarettes. Hemi itself neither owed taxes nor was obliged to

collect and remit them. This all suggests that Hemi’s alleged fraud was 
Cite as: 559 U. S. ____ (2010) 11 

Opinion of the Court 

Our precedent makes clear, moreover, that “the compensable injury flowing from a [RICO] violation . . . ‘necessarily is the harm caused by [the] predicate acts.’” Id., at 

457 (quoting Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 

479, 497 (1985)). In its RICO statement, the City alleged 

that Hemi’s failure to file Jenkins Act reports constituted

the predicate act of mail and wire fraud. Record A980. 

The City went on to allege that this predicate act “directly 

caused” its harm, id., at A996, but that assertion is a legal 

conclusion about proximate cause—indeed, the very legal 

conclusion before us. The only fraudulent conduct alleged

here is a violation of the Jenkins Act. See 541 F. 3d, at 

459 (Winter, J., dissenting). Thus, the City must show

that Hemi’s failure to file the Jenkins Act reports with the

State led directly to its injuries. This it cannot do. 

The City also relies on Bridge, 553 U. S. ___. Bridge

reaffirmed the requirement that there must be “a sufficiently direct relationship between the defendant’s wrongful conduct and the plaintiff’s injury.” Id., at ___ (slip op.,

at 18). The case involved competing bidders at a county 

tax-lien auction. Because the liens were profitable even at

the lowest possible bid, multiple bidders offered that low 

bid. (The bidding took the form of the percentage tax

penalty the bidder would require the property owner to 

pay, so the lowest possible bid was 0%.) To decide which 

bidder would be awarded the lien, the county devised a

plan to allocate the liens “on a rotational basis.” Id., at 

___ (slip op., at 3) (internal quotation marks omitted). But 

as we noted in that case, this created a “perverse incentive”: “Bidders who, in addition to bidding themselves, 

sen[t] agents to bid on their behalf [would] obtain a disproportionate share of liens.” Ibid. The county therefore 

—————— 

aimed at Hemi’s competitors, not the City. But Anza teaches that the

competitors’ injuries in such a case are too attenuated to state a RICO

claim.
12 HEMI GROUP, LLC v. CITY OF NEW YORK 

Opinion of the Court 

prohibited bidders from using such agents. Ibid. 

A losing bidder alleged that a competitor had defrauded

the county by employing shadow bidders to secure a

greater proportion of liens than it was due. We held that 

the bidder-plaintiff had met RICO’s causation requirement. Distinguishing that claim from the one at issue in 

Anza, we noted that the plaintiff’s theory of causation in 

Bridge was “straightforward”: Because of the zero-sum

nature of the auction, and because the county awarded 

bids on a rotational basis, each time a fraud-induced bid 

was awarded, a particular legitimate bidder was necessarily passed over. 553 U. S., at ___ (slip op., at 18). The 

losing bidders, moreover, “were the only parties injured by

petitioners’ misrepresentations.” Ibid. The county was

not; it received the same revenue regardless of which 

bidder prevailed.

The City’s theory in this case is anything but straightforward: Multiple steps, as we have detailed, separate the

alleged fraud from the asserted injury. And in contrast to 

Bridge, where there were “no independent factors that 

account[ed] for [the plaintiff’s] injury,” ibid., here there 

certainly were: The City’s theory of liability rests on the

independent actions of third and even fourth parties.

The City at various points during the proceedings below 

described its injury as the lost “opportunity to tax” rather

than “lost tax revenue.” It is not clear that there is a 

substantive distinction between the two descriptions. In 

any event, before this Court, the City’s argument turned

on lost revenue, not a lost opportunity to collect it. See, 

e.g., Brief for Respondent i (“Counter-Question Presented[:] Does the City of New York have standing under 

RICO because lost tax revenue constitutes a direct injury

to the City’s ‘business or property’ in accord with the

statute, 18 U. S. C. §1964(c), and this Court’s authority?”); 

id., at 40 (“[T]he City alleges that it has been injured (the

loss of tax revenues) by defendants’ RICO violations”). 
Cite as: 559 U. S. ____ (2010) 13 

Opinion of the Court 

Indeed, in its entire brief on the merits, the City never 

uses the word “opportunity” (or anything similar) to describe its injury.

Perhaps the City articulated its argument in terms of

the lost revenue itself to meet Hemi’s contention that an 

injury to the mere “opportunity to collect” taxes fell short

of RICO’s injury to “property” requirement. Brief for 

Petitioners 25 (“The opportunity to collect taxes from 

those who did owe them . . . falls within a class of expectation interests that do not qualify as injury to business or

property and therefore do not confer civil RICO standing” 

(internal quotation marks omitted)); see Cleveland v. 

United States, 531 U. S. 12, 15 (2000) (“It does not suffice

. . . that the object of the fraud may become property in the 

recipient’s hands; for purposes of the mail fraud statute, 

the thing obtained must be property in the hands of the

victim”).

That is not to say, however, that the City would fare any 

better on the causation question had it framed its argument in terms of a lost opportunity. Hemi’s filing obligation would still be to the State, and any harm to the City 

would still be caused directly by the customers’ failure to 

pay their taxes. See 541 F. 3d, at 461 (Winter, J., dissenting). Whatever the City’s reasons for framing its merits 

arguments as it has, we will not reformulate them for it 

now.2 

—————— 

2The dissent recognizes that its position poses the troubling specter

of turning RICO into a tax collection statute. Post, at 11–12 (opinion of 

BREYER, J.). The dissent’s answer looks largely to prosecution policy set 

forth in the Federal Department of Justice Guidelines, which are, of

course, not only changeable, but have no applicability whatever to state

or local governments. Under the decision below and the dissent’s 

position, RICO could be used as a tax collection device based solely on

the failure to file reports under the Jenkins Act, which itself provides

quite limited remedies. See 15 U. S. C. §377 (providing that a violation

of the Jenkins Act may be punished as a misdemeanor with a fine up to 

$1,000 and imprisonment for no more than six months). And that 
14 HEMI GROUP, LLC v. CITY OF NEW YORK 

Opinion of the Court 

In a final effort to save its claim, the City has shifted

course before this Court. In its second amended complaint 

and RICO statement, the City relied solely on Hemi’s 

failure to file Jenkins Act reports with the State to form

the basis of the predicate act mail and wire frauds. See 

Second Amended Compl. ¶¶99, 101, 118, 125; Record 

A980–A982. Before this Court, however, the City contends that Hemi made affirmative misrepresentations to 

City residents, which, the City now argues, comprise part

of the RICO predicate mail and wire frauds. See Brief for 

Respondent 42–43. The City’s counsel pressed the point at 

oral argument, asserting that the City’s injury was

“caused by the seller’s misrepresentation, which encourages the purchasers not to pay taxes.” Tr. of Oral Arg. 44. 

The City, however, affirmatively disavowed below any 

reliance on misrepresentations to form the predicate RICO 

violation. The alleged false statements, the City there

stated, “are evidence of the scheme to defraud, but are not 

part of the fraud itself. . . . [T]he scheme to defraud would 

exist even absent the statements.” Record A980. The City

reiterated the point: “The scheme consists of the interstate 

sale of cigarettes and the failure to file Jenkins Act reports

indentifying those sales.” Ibid. “Related to the fraud, but 

not a circumstance ‘constituting’ the fraud, the defendants 

inform customers that [their] purchases will be concealed,

and also seek to convince their customers that no taxes are 

owed by claiming, falsely, that the sales are tax-free.” Id., 

at A982. Not only did the City disclaim any reliance upon

misrepresentations to the customers to form the predicate

acts under RICO, but the City made clear in its second

amended complaint that its two RICO claims rested solely

on the Jenkins Act violations as the predicate acts. See 

—————— 

device would be available not only to the State, to which the reports

were due, but also to the City, to which Hemi owed no duty under the 

Act and to which it owed no taxes.
Cite as: 559 U. S. ____ (2010) 15 

Opinion of the Court 

Second Amended Compl. ¶¶ 118, 125. Because the City 

defined the predicate act before the District Court as 

Hemi’s failure to file the Jenkins Act reports, and expressly disavowed reliance on the alleged misrepresentations themselves as predicate acts, we decline to consider

Hemi’s alleged misstatements as predicate acts at this late 

stage. 

* * * 

It bears remembering what this case is about. It is 

about the RICO liability of a company for lost taxes it had

no obligation to collect, remit, or pay, which harmed a 

party to whom it owed no duty. It is about imposing such

liability to substitute for or complement a governing body’s

uncertain ability or desire to collect taxes directly from

those who owe them. And it is about the fact that the 

liability comes with treble damages and attorney’s fees

attached. This Court has interpreted RICO broadly,

consistent with its terms, but we have also held that its 

reach is limited by the “requirement of a direct causal 

connection” between the predicate wrong and the harm. 

Anza, 547 U. S., at 460. The City’s injuries here were not 

caused directly by the alleged fraud, and thus were not 

caused “by reason of” it. The City, therefore, has no RICO

claim. 

The judgment of the Court of Appeals for the Second

Circuit is reversed, and the case is remanded for further 

proceedings consistent with this opinion. 

It is so ordered. 

JUSTICE SOTOMAYOR took no part in the consideration 

or decision of this case. 
_________________ 

_________________ 

Cite as: 559 U. S. ____ (2010) 1 

Opinion of GINSBURG, J. 

SUPREME COURT OF THE UNITED STATES 

No. 08–969 

HEMI GROUP, LLC AND KAI GACHUPIN, 

PETITIONERS v. CITY OF NEW YORK, 

NEW YORK

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[January 25, 2010] 

JUSTICE GINSBURG, concurring in part and concurring in 

the judgment. 

As the Court points out, this is a case “about the RICO

liability of a company for lost taxes it had no obligation to

collect, remit, or pay.” Ante, at 15. New York City (or 

City) cannot, consistent with the Commerce Clause, compel Hemi Group, an out-of-state seller, to collect a City

sales or use tax. See Quill Corp. v. North Dakota, 504 

U. S. 298, 301 (1992); National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753, 758 (1967).

Unable to impose its tax on Hemi Group, or to require 

Hemi Group to collect its tax, New York City is attempting

to use the Racketeer Influenced and Corrupt Act (RICO), 

18 U. S. C. §1964(c), in combination with the Jenkins Act,

15 U. S. C. §§375–378, to overcome that disability. 

Hemi Group committed fraud only insofar as it violated 

the Jenkins Act by failing to report the names and addresses of New York purchasers to New York State. There 

is no other grounding for the City’s charge that it was

defrauded by Hemi Group. “Absent the Jenkins Act, 

[Hemi Group] would have owed no duty to disclose [its] 

sales to anyone, and [its] failure to disclose could not 

conceivably be deemed fraud of any kind.” City of New 

York v. Smokes-Spirits.com, Inc., 541 F. 3d 425, 460 (CA2 
2 HEMI GROUP, LLC v. CITY OF NEW YORK 

Opinion of GINSBURG, J., 

2008) (Winter, J., dissenting in part and concurring in

part).

Because “the alleged fraud is based on violations of . . . 

the Jenkins Act, . . . the nature and consequences of the 

fraud are [properly] determined solely by the scope of that 

Act.” Id., at 459. But “conspicuously absent from the

City’s pleadings is any claim brought pursuant to the 

Jenkins Act itself, rather than RICO, seeking enforcement

of the Jenkins Act.” Id., at 460. The City thus effectively 

admits that its claim is outside the scope of the very statute on which it builds its RICO suit. 

I resist reading RICO to allow the City to end-run its

lack of authority to collect tobacco taxes from Hemi Group 

or to reshape the “quite limited remedies” Congress has 

provided for violations of the Jenkins Act, see ante, at 13, 

n. 2. Without subscribing to the broader range of the

Court’s proximate cause analysis, I join the Court’s opinion to the extent it is consistent with the above-stated 

view, and I concur in the Court’s judgment. 
_________________ 

_________________ 

Cite as: 559 U. S. ____ (2010) 1 

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 08–969 

HEMI GROUP, LLC AND KAI GACHUPIN, 

PETITIONERS v. CITY OF NEW YORK, 

NEW YORK

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[January 25, 2010] 

JUSTICE BREYER, with whom JUSTICE STEVENS and 

JUSTICE KENNEDY join, dissenting. 

In my view, the Hemi Group’s failure to provide New 

York State with the names and addresses of its New York 

City cigarette customers proximately caused New York

City to lose tobacco tax revenue. I dissent from the 

Court’s contrary holding. 

I 

A 

Although the ultimate legal issue is a simple one, the 

statutory framework within which it arises is complex. As 

the majority points out, ante, at 3, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C.

§§1961–1968, provides a private cause of action (and 

treble damages) to “[a]ny person injured in” that person’s

“business or property by reason of” conduct that involves a 

“pattern of racketeering activity.” §§1964(c) (emphasis 

added), 1962. RICO defines “racketeering activity” to

include violations of various predicate criminal statutes

including mail and wire fraud. §1961(1). The “pattern of

racketeering” at issue here consists of repeated instances 

of mail fraud, which in turn consist largely of violations of

the federal Jenkins Act, 15 U. S. C. §§375–378. That Act 
2 HEMI GROUP, LLC v. CITY OF NEW YORK 

BREYER, J., dissenting 

seeks to help States collect tobacco taxes by requiring outof-state cigarette sellers, such as Hemi, to file reports with

state tobacco tax administrators identifying the names 

and addresses of in-state customers and the amounts they 

purchased. The violations consist of Hemi’s intentional 

failure to do so. 

As the majority points out, we must assume for present

purposes that an intentional failure to file Jenkins Act 

reports counts as mail fraud (at least where the failure is 

part of a scheme that includes use of the mails). Ante, at 

4. Lower courts have sometimes so held. See United 

States v. Melvin, 544 F. 2d 767, 773–777 (CA5 1977); 

United States v. Brewer, 528 F. 2d 492, 497–498 (CA4

1975). The Court of Appeals here so held. City of New 

York v. Smokes-Spirits.com, Inc., 541 F. 3d 425, 446 (CA2 

2008). And no one has challenged that holding. 

We must also assume that Hemi’s “intentiona[l] conceal[ment]” of the name/address/purchase information,

Second Am. Compl. ¶¶103, 104, is the legal equivalent of 

an affirmative representation that Hemi had no New York

City customers. See Restatement (Second) of Torts §551, 

p. 119 (1976) (a person “who fails to disclose . . . a fact” 

may be “subject to . . . liability” as if “he had represented

the nonexistence of the matter that he has failed to disclose”); cf. Stewart v. Wyoming Cattle Ranche Co., 128 

U. S. 383, 388 (1888) (concealment or suppression of material fact equivalent to a false representation). On these 

assumptions, the question before us is whether New York 

City’s loss of tax revenues constitutes an injury to its 

“business or property by reason of” Hemi’s Jenkins Act 

misrepresentations. 

B 

The case arises as a result of the District Court’s dismissal of New York City’s RICO complaint. Fed. Rule Civ. 

Proc. 12(b)(6). Hence we must answer the question in 
Cite as: 559 U. S. ____ (2010) 3 

BREYER, J., dissenting 

light of the facts alleged, taking as true the facts pleaded 

in the complaint (along with the “RICO statement” submitted pursuant to the District Court’s rule). Bridge v. 

Phoenix Bond & Indemnity Co., 553 U. S. ___, ___, n. 1 

(2008) (slip op., at 1, n. 1). Those facts (as I interpret

them) include the following:

1. New York State (or State) and New York City (or City) 

both impose tobacco taxes on New York cigarette buyers. Second Am. Compl. ¶37.

2. Both City and State normally collect the taxes from

in-state cigarette sellers, who, in turn, charge retail 

customers. Id., ¶¶4, 6.

3. Hemi, an out-of-state company, sells cigarettes over

the Internet to in-state buyers at prices that are lower

than in-state cigarette prices. The difference in price

is almost entirely attributable to the fact that Hemi’s

prices do not include any charge for New York taxes.

Hemi advertises its cigarettes as “tax free” and often

adds that it “does not report any sales activity to any 

State taxing authority.” Id., ¶¶2, 6, 108b (internal

quotation marks omitted; emphasis deleted). 

4. New York State normally receives Jenkins Act reports

from out-of-state sellers. It is contractually obliged to

pass the information on to New York City (and I assume it normally does so). Id., ¶¶8–9, 11, 54–57. 

5. When it receives Jenkins-Act-type information, New 

York City writes letters to resident customers asking 

them to pay the tobacco tax they owe. As a result, 

New York City collects about 40% of the tax due. (By

doing so, in 2005 the City obtained $400,000 out of $1

million owed.) Id., ¶¶58–59.

6. Hemi has consistently and intentionally failed to file 

Jenkins Act reports in order to prevent both State and

City from collecting the tobacco taxes that Hemi’s instate customers owe and which otherwise many of 

those customers would pay. Id., ¶¶13, 24, 58. 
4 HEMI GROUP, LLC v. CITY OF NEW YORK 

BREYER, J., dissenting 

II 

A 

The majority asks whether New York City stated a valid

cause of action in alleging that it lost tobacco tax revenue

“by reason of” Hemi’s unlawful misrepresentations. The 

facts just set forth make clear that we must answer that 

question affirmatively. For one thing, no one denies that

Hemi’s misrepresentation was a “but-for” condition of New 

York City’s loss. In the absence of the misrepresentation, 

i.e., had Hemi told New York State the truth about its 

New York City customers, New York City would have 

written letters to the purchasers and obtained a significant share of the tobacco taxes buyers owed.

For another thing, New York City’s losses are “reasonably foreseeable” results of the misrepresentation. It is

foreseeable that, without the name/address/purchase 

information, New York City would not be able to write

successful dunning letters, and it is foreseeable that, with 

that information, it would be able to write successful 

dunning letters. Indeed, that is a natural inference from, 

among other things, the complaint’s assertion that Hemi 

advertised that it did not “report” sales information to

“State taxing authorit[ies].” See, e.g., Smith v. Bolles, 132 

U. S. 125, 130 (1889) (for causation purposes, “‘those 

results are proximate which the wrong-doer from his 

position must have contemplated as the probable consequence of his fraud or breach of contract’” (quoting Crater 

v. Binninger, 33 N. J. L. 513, 518 (Ct. Errors and Appeals 

1869)); see also W. Keeton, D. Dobbs, R. Keeton, & D.

Owen, Prosser and Keeton on Law of Torts §110, p. 767

(5th ed. 1984) (hereinafter Prosser and Keeton); 3 S.

Speiser, C. Krause, & A. Gans, The American Law of Torts 

§11:3, p. 68 (2003) (“By far the most treated and most

discussed aspect of the law of proximate or legal cause is

the so-called doctrine of foreseeability”). But cf. ante, at 9 

(“The dissent would have RICO’s proximate cause re­
Cite as: 559 U. S. ____ (2010) 5 

BREYER, J., dissenting 

quirement turn on foreseeability . . .”).

Further, Hemi misrepresented the relevant facts in 

order to bring about New York City’s relevant loss. It 

knew the loss would occur; it intended the loss to occur; 

one might even say it desired the loss to occur. It is difficult to find common-law cases denying liability for a

wrongdoer’s intended consequences, particularly where

those consequences are also foreseeable. Cf. Bridge, supra, at ___–___ (slip op., at 9–10) (“[S]uppose an enterprise

that wants to get rid of rival businesses mails representations about them to their customers and suppliers, but not 

to the rivals themselves. If the rival businesses lose 

money as a result of the misrepresentations, it would 

certainly seem that they were injured in their business ‘by

reason of’ a pattern of mail fraud . . .”); N. M. ex rel. Caleb 

v. Daniel E., 2008 UT 1, ¶7, n. 3, 175 P. 3d 566, 569, n. 3

(“[I]f an unskilled marksman were to shoot a single bullet 

at a distant individual with the intent of killing her, that 

individual’s injury or death may not be the natural and 

probable consequence of the [shooter’s] act[,] . . . [but] the

harm would not be an accident because the shooter intended the harm, even though the likelihood of success 

was improbable”); 1 F. Harper & F. James, The Law 

of Torts, §7.13, p. 584 (1956) (explaining that, ordinarily,

“all intended consequences” of an intentional act “are 

proximate”).

In addition, New York City’s revenue loss falls squarely 

within the bounds of the kinds of harms that the Jenkins 

Act (essentially the predicate statute) seeks to prevent. 

The statute is entitled “An Act To assist States in collecting sales and use taxes on cigarettes.” 63 Stat. 884. I 

have no reason to believe the Act intends any different

result with respect to collection of a city’s tobacco tax

assessed under the authority of state law. See N. Y. Unconsol. Law Ann. §9436(1) (West Supp. 2009) (authorizing 

cities with over one million inhabitants to impose their 
6 HEMI GROUP, LLC v. CITY OF NEW YORK 

BREYER, J., dissenting 

own cigarette taxes). The Restatement (Second) of Torts 

explains that where 

“a statute requires information to be furnished . . . for 

the protection of a particular class of persons, one who 

makes a fraudulent misrepresentation . . . is subject to 

liability to the persons for pecuniary loss . . . in a 

transaction of the kind in which the statute is intended to protect them.” §536, at 77 (1976). 

See also §536, Appendix (citing supporting cases in the 

Reporter’s Note).

Finally, we have acknowledged that “Congress modeled 

§1964(c) on the civil-action provision of the federal antitrust laws,” and we have therefore looked to those laws as 

an interpretive aid in RICO cases. Holmes v. Securities 

Investor Protection Corporation, 503 U. S. 258, 267, 268 

(1992). I can find no antitrust analogy that suggests any 

lack of causation here, nor has the majority referred to

any such analogical antitrust circumstance. 

The upshot is that the harm is foreseeable; it is a consequence that Hemi intended, indeed desired; and it falls

well within the set of risks that Congress sought to prevent. Neither antitrust analogy nor any statutory policy of 

which I am aware precludes a finding of “proximate

cause.” I recognize that some of our opinions may be read

to suggest that the words “by reason of” in RICO do not

perfectly track common-law notions of proximate cause.

See, e.g., Bridge, 553 U. S., at ___–___ (slip op., at 14–16). 

But where so much basic common law argues in favor of 

such a finding, how can the Court avoid that conclusion

here? 

B 

The majority bases its contrary conclusion upon three

special circumstances and its reading of two of this Court’s

prior cases. In my view, none of the three circumstances 
Cite as: 559 U. S. ____ (2010) 7 

BREYER, J., dissenting 

precludes finding causation (indeed two are not even

relevant to the causation issue). Nor can I find the two 

prior cases controlling.

The three circumstances are the following: First, the

majority seems to argue that the intervening voluntary

acts of third parties, namely, the customers’ own independent failures to pay the tax, cuts the causal chain. 

Ante, at 8 (“[T]he City’s harm was directly caused by the

customers, not Hemi”); see Saugerties Bank v. Delaware & 

Hudson Co., 236 N. Y. 425, 430, 141 N. E. 904, 905 (1923) 

(third party’s forgery of a bill of lading an intervening 

cause); Prosser and Keeton §44, at 313–314 (collecting 

cases on intervening intentional or criminal acts). But an 

intervening third-party act, even if criminal, does not cut a

causal chain where the intervening act is foreseeable and 

the defendant’s conduct increases the risk of its occurrence. See Lillie v. Thompson, 332 U. S. 459, 462 (1947) 

(per curiam); Horan v. Watertown, 217 Mass. 185, 186, 104 

N. E. 464, 465 (1914); see also Restatement (Second) of

Torts §435A, at 454 (1963–1964) (intentional tortfeasor 

liable for intended harm “except where the harm results

from an outside force the risk of which is not increased by 

the defendant’s act”). Hemi’s act here did increase the 

risk that New York City would not be paid; and not only 

was the risk foreseeable, but Hemi’s advertising strongly

suggests that Hemi actually knew nonreporting would 

likely bring about this very harm.

The majority claims that “directness,” rather than foreseeability, should be our guide in assessing proximate

cause, and that the lack of a “direct” relationship in this 

case precludes a finding of proximate causation. Ante, at 

9–10. But courts used this concept of directness in tort 

law to expand liability (for direct consequences) beyond

what was foreseeable, not to eliminate liability for what 

was foreseeable. Thus, under the “directness” theory of

proximate causation, there is liability for both “all ‘direct’ 
8 HEMI GROUP, LLC v. CITY OF NEW YORK 

BREYER, J., dissenting 

(or ‘directly traceable’) consequences and those indirect 

consequences that are foreseeable.” Prosser and Keeton 

§42, at 273 (emphasis added); see also id., §43, at 294, and 

n. 17 (citing Nunan v. Bennett, 184 Ky. 591, 212 S. W. 

570 (1919)). I do not read this Court’s opinions in 

Holmes or Anza v. Ideal Steel Supply Corp., 547 U. S. 451 

(2006), to invoke anything other than this traditional

understanding.

Second, the majority correctly points out that Hemi

misrepresented the situation to the State, not to the

City—a circumstance which, the majority believes, significantly separates misrepresentation from harm. Ante, at 8. 

But how could that be so? New York State signed a contract promising to relay relevant information to the City.

In respect to that relevant information, the State is a 

conduit, indeed roughly analogous to a postal employee.

This Court has recognized specifically that “under the 

common law a fraud may be established when the defendant has made use of a third party to reach the target of 

the fraud.” Tanner v. United States, 483 U. S. 107, 129 

(1987). The treatises say the same. See, e.g., Prosser and 

Keeton §107, at 743–745; 26 C. J. S., Fraud §47, p. 1121 

(1921) (collecting cases); see also Prosser, Misrepresentation and Third Parties, 19 Vand. L. Rev. 231, 240–241, 

and nn. 56–59, 62–64 (1966) (collecting cases). This Court 

has never suggested the contrary, namely, that a defendant is not liable for (foreseeable) harm (intentionally) 

caused to the target of a scheme to defraud simply because

the misrepresentation was transmitted via a third (or even

a fourth or fifth) party. Cf. Terry, Intent to Defraud, 25

Yale L. J. 87, 93 (1915) (“When a representation is communicated through one person to another in such circumstances that it can be deemed to be directed to the latter, 

it makes no difference through how many persons or by 

how circuitous a route it reaches the latter . . .”). 

Third, the majority places great weight upon its view 
Cite as: 559 U. S. ____ (2010) 9 

BREYER, J., dissenting 

that Hemi tried to defraud the State, not the City. Ante, 

at 8–9. Hemi, however, sought to defraud both. Third 

Amended RICO Statement ¶d (explaining that “[e]very

other State or local government that imposes a use tax on

cigarettes and whose residents purchase cigarettes” from

Hemi is a victim of its scheme to defraud). Hemi sought to

prevent the State from collecting state taxes; and it sought 

to prevent the City from collecting city taxes. Here we are 

concerned only with the latter. In respect to the latter, the 

State was an information conduit. The fact that state 

taxes were also involved is beside the point. 

The two Supreme Court cases to which the majority

refers involve significantly different causal circumstances. 

Ante, at 5–8. The predicate acts in Holmes—the defendant’s acts that led to the plaintiff’s harm—consisted of 

securities frauds. The defendant misrepresented the

prospects of one company and misled the investing public

into falsely believing that it could readily buy and sell the 

stock of another. When the truth came out, stock prices

fell, investors (specifically, stockbrokers) lost money, and 

since the stockbrokers could not pay certain creditors, 

those creditors also lost money. 503 U. S., at 262–263. 

Claiming subrogation to stand in the shoes of the creditors, the Securities Investor Protection Corporation sued. 

Id., at 270–271. 

Since the creditors had not bought the securities, there

was little reason to believe the defendant intended their 

harm. And the securities statutes seek, first and foremost, 

to protect investors, not creditors of those who sell stock to

those investors. The latter harm (a broker’s creditor’s 

loss) differs in kind from the harm that the “predicate act”

statute primarily seeks to avoid and that its violation 

would ordinarily cause (namely, investors’ stock-related 

monetary losses). As Part II–A, supra, points out, neither

of these circumstances is present here.

In Anza, the plaintiff was a business competitor of the 
10 HEMI GROUP, LLC v. CITY OF NEW YORK 

BREYER, J., dissenting 

defendants. The plaintiff claimed that the defendants

falsely told state officials that they did not owe sales tax. 

The plaintiff added that, had the defendants paid the tax 

they owed, the defendants would have had less money 

available to run their business, and the plaintiff consequently would have been able to compete against them

more effectively. 547 U. S., at 454, 457–458. 

 Again, in Anza the kind of harm that the plaintiff alleged is not the kind of harm that the tax statutes primarily seek to prevent. Rather, it alleged a kind of harm 

(competitive injury) that tax violations do not ordinarily 

cause and which ordinarily flows from the regular operation of a competitive marketplace. Thus, in both Holmes 

and Anza, unlike the present case, plaintiffs alleged special harm, neither squarely within the class of harms at

which the relevant statutes were directed, nor of a kind 

that typical violators would intend or even foresee. 

Bridge, which the majority seeks to distinguish, ante, at 

11–12, is a more closely analogous case. The defendants 

in that case directed agents to misrepresent to a county

that they qualified as independent bidders at a county-run 

property auction. They consequently participated in the 

auction. And the plaintiffs, facing additional bidders, lost 

some of the property that they otherwise would have 

won—all to their financial disadvantage. 553 U. S., at 

___–___ (slip op., at 3–4). The harm was foreseeable; it 

was intended; and it was precisely the kind of harm that 

the county’s bidding rules sought to prevent. Thus this 

Court held that the harm was “a foreseeable and natural 

consequence of [the defendants’] scheme.” Id., at ___ (slip 

op., at 18).

In sum, the majority recognizes that “[p]roximate cause 

for RICO purposes . . . should be evaluated in light of its

common law foundations,” ante, at 6, but those foundations do not support the majority’s view. Moreover, the 

majority’s rationale would free from RICO liability defen­
Cite as: 559 U. S. ____ (2010) 11 

BREYER, J., dissenting 

dants who would appear to fall within its intended scope. 

Consider, for example, a group of defendants who use a

marketing firm (in RICO terms, an “enterprise”) to perpetrate a variation on a “pump and dump” scheme. See, e.g., 

United States v. Salmonese, 352 F. 3d 608, 612 (CA2 

2003). They deliberately and repeatedly make egregiously 

fraudulent misrepresentations to inflate the price of securities that, unbeknownst to investors, they own. After the 

stock price rises, the defendants sell at an artificial profit.

When the fraud is revealed, the price crashes, to the investors’ detriment. Suppose the defendants have intentionally spoken directly only to intermediaries who simply 

repeated the information to potential investors, and have

not had any contact with the investors themselves. Under 

the majority’s reasoning, these defendants apparently did

not proximately cause the investors’ losses and are not 

liable under RICO. 

III 

If there is causation, we must decide whether, for RICO 

purposes, the City’s loss of tax revenue is “‘business or 

property’ under 18 U. S. C. §1964(c).” Ante, at 5 (acknowledging, but not reaching, this second issue). The question

has led to concern among the lower courts. Some fear that 

an affirmative answer would turn RICO into a tax collection statute, permitting States to bring RICO actions and 

recover treble damages for behavior that amounts to no

more than a failure to pay taxes due. See, e.g., Michigan, 

Dept. of Treasury, Revenue Div. v. Fawaz, No. 86–1809, 

1988 WL 44736, *2 (CA6 1988) (holding that tax revenue

is not RICO “property” lest district courts become “collection agencies for unpaid state taxes”); Illinois Dept. of 

Revenue v. Phillips, 771 F. 2d 312, 316, 312 (CA7 1985)

(holding, “reluctantly,” that “a state’s Department of

Revenue may file suit in federal court for treble damages 

under [RICO] against a retailer who files fraudulent state 
12 HEMI GROUP, LLC v. CITY OF NEW YORK 

BREYER, J., dissenting 

sales tax returns”).

In a related context, however, the Department of Justice 

has taken steps to avoid the “tax collection agency” problem without reading all tax-related frauds out of similar 

federal criminal statutes. The Department’s prosecution

guidelines require prosecutors considering a tax-related 

mail fraud or wire fraud or bank fraud prosecution (or a 

related RICO prosecution) to obtain approval from highlevel Department officials. And those guidelines specify 

that the Department will grant that approval only where

there is at issue “a large fraud loss or a substantial 

pattern of conduct” and will not do so, absent “unusual 

circumstances,” in cases involving simply “one person’s

tax liability.” Dept. of Justice, United States Attorneys’ 

Manual §6–4.210(A) (2007), online at http://www.justice.

gov/usao/eousa/foia_reading_room/usam/title6/4mtax.htm

(as visited Jan. 20, 2010, and available in Clerk of Court’s 

case file); see also §6–4.210(B) (explaining that the Department “will not authorize the use of mail, wire or bank 

fraud charges to convert routine tax prosecutions into

RICO . . . cases”). 

This case involves an extensive pattern of fraudulent 

conduct, large revenue losses, and many different unrelated potential taxpayers. The Department’s guidelines 

would appear to authorize prosecution in these circumstances. And limiting my consideration to these circumstances, I would find that this RICO complaint asserts a 

valid harm to “business or property.” I need not and do 

not express a view as to how or whether RICO’s civil

action provisions apply to simpler instances of individual

tax liability.

This conclusion is virtually compelled by Pasquantino v. 

United States, 544 U. S. 349 (2005), a case that we decided 

only five years ago. We there pointed out that the right to

uncollected taxes is an “entitlement to collect money . . . , 

the possession of which is ‘something of value.’” Id., at 
Cite as: 559 U. S. ____ (2010) 13 

BREYER, J., dissenting 

355 (quoting McNally v. United States, 483 U. S. 350, 358 

(1987)). Such an entitlement “has long been thought to be

a species of property.” 544 U. S., at 356 (citing 3 W. Blackstone, Commentaries on the Laws of England 153–155

(1768)). And “fraud at common law included a scheme to 

deprive a victim of his entitlement to money.” 544 U. S., 

at 356. We observed that tax evasion “inflict[s] an economic injury no less than” the “embezzle[ment] [of] funds 

from the . . . treasury.” Ibid. And we consequently held 

that “Canada’s right to uncollected excise taxes on the 

liquor petitioners imported into Canada” is “‘property’” 

within the terms of the mail fraud statute. Id., at 355. 

Hemi points in reply to our decision in Hawaii v. Standard Oil Co. of Cal., 405 U. S. 251 (1972). But that case 

involved not a loss of tax revenues, but “injury to the 

general economy of a State”—insofar as it was threatened 

by violations of antitrust law. Id., at 260. Hawaii’s interest, both more general and derivative of harm to individual businesses, differs significantly from the particular tax

loss at issue in Pasquantino and directly at issue here.

We have previously made clear that the compensable 

injury for RICO purposes is the harm caused by the predicate acts. See generally Sedima, S. P. R. L. v. Imrex Co., 

473 U. S. 479, 495–496 (1985); cf. Cleveland v. United 

States, 531 U. S. 12, 25 (2000). I can find no convincing

reason in the context of this case to distinguish in the 

circumstances present here between “property” as used in

the mail fraud statute and “property” as used in RICO.

Hence, I would postpone for another day the question

whether RICO covers instances where little more than the 

liability of an individual taxpayer is at issue. And I would 

find in the respondent’s favor here.

With respect, I dissent.